Below is my column in The Hill newspaper on the Stone controversy. The column suggested that the Trump tweet before the change in the sentencing memorandum in the Stone case may not have been related, but simply another example of Trump triggering a controversy with an irresponsible and ill-timed tweet. After the column, Trump made the situation even worse by publicly complimenting Attorney General Bill Barr. As I mentioned at the time, the “atta boy” was more damaging than the original criticism. Barr responded correctly by criticizing the President’s continued public comments on pending cases and attacks on federal judges. While the President is clearly undeterred, both the change in the sentencing recommendation and the criticism of the President were well warranted.
Here is the column:
Washington awoke this morning to a brand-new scandal, after the resignation of four Department of Justice (DOJ) trial prosecutors in a high-profile case and questions of whether a presidential screed prompted a change in sentencing recommendations for a friend. It is all too familiar: a tweet, a change, and a scandal.
As with the Russia scandal, the question is one of sequence. It is what academics call a “causality dilemma.” Forget the chicken and the egg — this is the Trump administration. The perennial question is what came first: the bull or the china shop.
Since his arrival in Washington, Donald Trump has clearly relished the image of a raging bull, but he often suggests that the china shop was built around him. The latest broken china, so to speak, is the remnants of what once was the prosecution of Trump confidant Roger Stone.
It is a signature scandal for Trump, who went public after prosecutors sought a seven- to nine-year sentence for Stone; soon afterward, the Justice Department rescinded the initial sentencing recommendation and the four trial prosecutors resigned en masse. Now there are calls for investigations, as well as widespread denunciations of an “infestation” of political interference and a president run amok.
As a threshold matter, House Speaker Nancy Pelosi (D-Calif.) is correct in calling for an investigation into the matter. It is uncommon to see the DOJ suddenly withdraw a sentencing recommendation in a high-profile case, and even more uncommon for a team of prosecutors to resign en masse. Legitimate concerns are raised when a president inappropriately lashes out at his own Justice Department in a case involving not just a close associate but someone who refused to testify against him or his campaign. When that attack is followed by a dramatic change in the case, there is a need to look at whether political influence has corrupted the prosecutorial process.
This, however, has that familiar feel.
In the Russian scandal, I supported the appointment of a special counsel after President Trump fired former FBI director James Comey, but I said at the time that I did not believe there was an underlying crime or collusion with Russia. The fact is that the sequence of events creates reasonable questions of presidential interference. It turned out that there was no Russian collusion and that Trump’s call for Russia to find Hillary Clinton’s missing emails was inappropriate but not incriminating.
The Justice Department — and Trump — have publicly stated that the president had no conversations with the DOJ on the sentencing change. Indeed, the department issued a statement that the decision to change the recommendation was made before Trump publicly denounced what he called a “miscarriage of justice” in the case. If true, the question becomes whether it was inappropriate for Attorney General Bill Barr or officials at Main Justice to demand such a change. Only a full disclosure of the facts can answer that question, but there are reasons why such an intervention might be appropriate on the merits.
While correct in seeking answers to these questions, Pelosi is wrong in her declaration that a change of the sentencing recommendation is, on its face, “outrageous” and that “DOJ has deeply damaged the rule of law by withdrawing its recommendation.” You’ll note she is supported by many of the same experts who declared clear criminal conduct by Trump in the Russia investigation and then the Ukraine investigation.
The problem is that the DOJ’s new sentencing position is the correct one. When the original sentencing recommendation was filed, many of us denounced it as excessive and ridiculous, given the underlying facts. While it is true that the recommendation was within the sentencing guidelines (albeit on the high end), that was due to DOJ prosecutors stacking counts against Stone for his false statements and tampering with witnesses. I have long been critical of the case as being overcharged, as well as objecting to the prosecutor’s heavy-handed conduct.
In its new filing, the DOJ told the court: “While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.” That just happens to be right in every respect, from the demand for jail time being warranted by Stone’s conduct to the recognition that he should not be sentenced for the rough equivalent of bank robbery or manslaughter.
The DOJ also was correct in changing the sentencing recommendation for former national security adviser Mike Flynn. The charge against Flynn for a single false statement to federal investigators was highly dubious from the start; he pleaded guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition. The meeting was entirely legal, and Flynn did not deny the meeting. However, he denied discussing sanctions with the Russians, and Robert Mueller charged him. In the meantime, a key figure in that investigation, former FBI deputy director Andrew McCabe, was alleged to have lied to investigators but was not charged with any crime.
In both cases, Main Justice was right to rein in its prosecutors. Indeed, that is one of the core functions of Main Justice. Local prosecutors are not independent contractors meting out justice as they deem fit. They are part of a department of prosecutors, subject to the direction and authority of Main Justice. The U.S. Attorney’s Manual expressly states that “Department of Justice and Criminal Division policies impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases.” That includes sentencing recommendations.
Again, none of this means there are not legitimate questions that need to be answered, but the sequence of events may not prove as damning as reported. It comes down to the same causality dilemma of chickens and eggs. Sometimes the answer is not as binary as suggested by the question, as Neil deGrasse Tyson explained in his answer: “Which came first: the chicken or the egg? The egg — laid by a bird that was not a chicken.” The same may be true of eggs laid by a president who is not a prosecutor.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.
88 thoughts on “Bull Meets China Shop: Why The President Tweets Fail Another Causality Test By The Media”
Slow your roll, Jon. You claim: “It turned out that there was no Russian collusion and that Trump’s call for Russia to find Hillary Clinton’s missing emails was inappropriate but not incriminating.” Are you bucking for a job as a Fox News pundit? That statement is just plain false. Trump WAS NOT cleared. And, right after he asked Russia to investigate, they did so. He refused to cooperate with the Mueller investigation. He refused an interview, after initially agreeing to do one (because his lawyers know that he won’t listen to advice and shoots off his big mouth), and refused to turn over documents. That hamstrung Mueller, who believed he was bound by DOJ policy that Trump couldn’t have been indicted. Trump also denies there was obstruction of justice. There are about 10 such instances outlined in the Mueller Report, plus the obstruction he was impeached for.
I still want you to set forth the law that says that Trump is immune from prosecution and the legal support for blanket refusal to turn over documents and command witnesses not to cooperate. Are you aware of any such authority? Trump says he’s above the law, and can do as he pleases. Do you agree? If you don’t, then how can Trump not be guilty of obstruction of justice and obstruction of Congress?
No reasonable person could legitimately say there was no collusion. We don’t know what proof of collusion would have been uncovered if Trump had fully cooperated, if he would turn over his financials, and if there was no evidence, he would have had nothing to hide. But, he did hide and refused to cooperate, plus he fired Comey and threatened to fire Mueller several times, but was talked out of it. He fired Jeff Sessions because Sessions had to recuse himself due to professional responsibility requirements, because he couldn’t investigate Trump’s campaign when he had been part of it. There’s plenty of evidence that members of his campaign did collude with Russia, and that they lied about it. They were either convicted or pleaded guilty. Now, there’s a new book out that explains Trump’s ties with Russians who are financing his projects, using Deutsche Bank as a conduit. The money he obtained came from Russia, not Deutsche Bank. This is because Trump doesn’t honor his obligations and no real bank will loan him any money. That’s at least one reason why he won’t disclose his financials. It is disingenuous of you to claim that “there was no Russian collusion”. Trump stonewalled and got away with it. That’s not exoneration. Let’s see the financials. Let’s hear from the witnesses. THEN and only then can we say that there was no Russian collusion.
You also claim: “You’ll note she (Nancy Pelosi) is supported by many of the same experts who declared clear criminal conduct by Trump in the Russia investigation and then the Ukraine investigation”. Come on, Turley, this is the stuff of Hannity, not reality, and it is beneath a law professor to say something like this. Trump did obstruct justice in both instances. Everyone on earth knows that Trump tried to leverage aid to Ukraine for help with his campaign, and that this happened immediately after the Mueller Report was released. He wouldn’t release the actual transcript of the call–if it was “perfect”, then let Americans decide this for themselves. He only got away with this because Republicans in the Senate disregarded their oath to protect and defend the Constitution. 48 U.S. Senators voted to convict, and several others admitted he was guilty, but they still refused to convict. Your spin on the facts is disingenuous, Turley. There WAS clear criminal conduct. For you to spend your credentials trying to spin away the truth is very disappointing. Trump isn’t worth it.
Except, he actually cooperated fully with the Mueller probe. Please name the witnesses or documents he withheld. Please list each time he invoked executive privilege. Put simply: you can’t because he didn’t. Because you start your comments with such elementary faults, I saw no reason to read the remainder.
TDS at its finest.
I don’t think Natacha is competent to be talking about “what reasonable people do”.
Are you? I doubt it.
Yes, but I can see that you may prefer Natacha’s judgement.
everything President Trump does is either a scandal or a crime according to you d.c. types. given the facts (1) that the stone prosecutors were part of the mueller cabal; (2) cases against stone and gen Flynn had NO relevance to the fake theories underlying the Clinton inspired Russian collusion; and (3) the only method that President Trump can accurately inform the public or otherwise make his points is through twitter. He cannot rely on the mainstream media for accurate and straight talk on matters he deems important. Such is the case in this stone matter. My point is buttressed by the silly petition file by numerous ex-federal prosecutors “demanding” Barr resign. My goodness, how dare the President (or any other person) challenge the behavior or actions of a federal prosecutor (or even a federal judge.) Infallible they are not. So the hogwash brigades will continue to moan and groan against a President who, unlike his immediate predecessor, will speak his mind. I am sorry to see that you appear to be mired in such hogwash.
There have been at least two previous “DOJ Alumni” letters/petitions; the one the link deals with was from May 2019, after the Mueller investigation and Mueller’s testimony.
The fact that Mueller ( by DOJ policy) could not indict a sitting president did not prevent Mueller from offering an opinion on whether a crime was committed by the president; AG Barr himself said that Mueller was free to do so, but Mueller did not.
So this “DOJ Alumni” group was trying to make the case that Trump committed a crime, after Mueller did not state that conclusion.
I wrote previously about the “Project to Protect Democracy” formed in Feb.2017 by what we’re described as “Obama lawyers”, and these “DOJ Alumni” work in tandem with the 501c group, Project to Protect Democracy.
Since they were organized and funded since Feb.2017, long before Barr was on the scene, their original purpose may have been to kneecap the Jeff Sessions’ DOJ.
Almost every article stresses the 1100 ( now 2,000, I think) “former DOJ officials” demanding Barr’s resignation, but virtually every article fails to cover the origins and history of these groups.
Here is another signed letter/petition when the “DOJ Alumni” was previously “disturbed”.
In this case, it was against Acting Attorney General Matthew Whitaker, who served for 3 months on an interim basis (between Jeff Sessions’ resignation and the confirmation of AG).
From what I’ve seen of the history and goals of the “DOJ Alumni/ Project to Protect Democracy”, these signed letters seem to be more of an ongoing project rather than a sudden objection to Barr as AG.
Trump tweets because: 1. he can’t think on his feet; he is really not very smart, and he appears to have some form of ADD. He has a short attention span, so memos provided to him have to be dumbed-down and limited to only a few pages. Partly, this could be due to his disabling narcissism: why should he spend time reading things written by others, when he knows more than anyone else about everything in the world? 2. almost every time he has done interviews, he incriminates himself; 3. he frequently slurs his words, perhaps due to being on tranquilizers because he can’t handle being questioned. The world is supposed to worship him, not confront him with questions about his misdeeds.
Trump has never ACCURATELY informed the public about anything. It’s the “hit and run mouth” strategy: he tweets whatever he wants and doesn’t have to answer questions about it like he would in an actual interview. No other modern POTUS has refused to hold regular news conferences.
No other POTUS has attacked the DOJ and the federal bench like Trump. Again, part of his narcissism. The DOJ represents U.S. citizens. It is there to enforce the laws passed by Congress. We citizens elect Representatives and Senators to represent us. The DOJ is not beholden to the President. No doubt people have tried to tell Trump this, but he either won’t listen or doesn’t care. Federal judges are there to preside over trials and lawsuits. One reason for federal courts is to overcome the political influence of state courts and state court judges, and to enforce federal laws. Trump doesn’t understand that the world does not exist to pay homage to him.
Removing the President, Vice President and AG IS Pelosi’s agenda. That would make her President. It’s all a game and you’re playing it.
The Speaker is 3rd in line for the presidency, immediately following the veep. However, with the 25th amendment, ,the new prez immediately appoints a new veep.
So the Speaker never makes it.
This is her dream because she knows her time is limited and she would never be elected. Elite snobs are no longer in vogue for real Americans. Soros funded puppets are not going to destroy our foundation. Nancy needs to clean up the streets and lift up the poverty of her constituents.
It’s too bad that the DOJ isn’t more concerned about the inappropriate sentences they recommend for less high profile cases everyday.
Jonathan: Your arguments in support of AG Barr’s intervention in the Stone case don’t make sense. You first admit the proposed sentence of 7 to 9 years was within sentencing guidelines but then you say Roger Stone should not be sentenced for the “rough equivalent of bank robbery or manslaughter”. Really? Stone was convicted on all counts: obstruction of a Congressional investigation, five counts of making false statements and witness tampering (threatening a witness). That’s serious stuff. In their sentencing recommendation the prosecutors said Stone’s conduct was “a direct and brazen attack on the rule of law”. Isn’t that at least equivalent to your ordinary bank robbery? If a bank robber makes false statements about his participation in the robbery and then threatens witnesses wouldn’t this warrant at least 7 to 9 years in prison? Logic and reason indicate AG Barr intervened in the Stone case at the bidding of Trump. He didn’t need a direct order from Trump to “fix the case”. Early on in the Stone case, Trump made it clear he thought the prosecution of his close confident was “miscarriage of justice”. Barr knew that failure to intervene would result in political blowback from Trump. So Barr’s revised sentencing recommendation was an attempt to placate Trump and he was willing to cut the prosecutors off at the knees to do so. You also claim that when the original sentencing recommendation of 7 to 9 years was filed you said “many of us denounced it as excessive and ridiculous”. Who exactly are the “many of us”? The four prosecutors resigned in protest. And now over 1,100 former prosecutors have written a letter calling on Barr to resign for putting his thumb on the scale of justice indicating: “…it is unheard of for the Department’s top leaders to overrule prosecutors, who are following established policies, or order to give preferential treatment to a close associate of the President…”. I doubt whether any of these former prosecutors would agree that Stone’s original sentence recommendation was “excessive and ridiculous”. In the years leading up to Richard Nixon’s resignation he turned the Justice Department and the FBI into his personal fiefdom, having his appointees reward his friends and penalize his enemies. Trump is following in the Nixon tradition. Mark Twain once remarked: “History doesn’t repeat itself, but it rhymes”.
You are going to need a rock to hide under when everything you’ve swallowed has been shown the light of day.
There are no violations of NYT Co. v. Sullivan here….no, Sir….none.
Good thing we have the moderator watching out for us….
I think it’s time for SCOTUS to revisit this law…
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